As part of the aggressive campaign to tie adult websites to sex trafficking, various anti-porn activists are pressuring the major credit card associations to stop doing business with the adult industry. A recent opinion piece published in the Washington Examiner posed the loaded question: “How can mainstream credit card companies process payments for an industry that is virtually guaranteed to profit from rape and sex trafficking?” This led to an article on CBN News claiming that “Your Credit Card Company is Likely Partnering with Porn Websites.” The proponents of this effort point to the fact that PayPal decided to stop processing payments for most adult sites in late 2019 and suggest that the major credit card companies follow suit. The public pressure campaign is accompanied by an effort to shut down a large adult site for allegedly facilitating sex trafficking and a bill designed to force online platforms to impose restrictions on underage content.
This campaign is fueled by the unproven notions that pornography contributes to sex trafficking and turns our youth into a bunch of degenerates. Instead of proof, the activists rely on a small sampling of incidents where individuals claim “revenge porn” videos have been uploaded to large tube sites or point to the outlier sex trafficking prosecution against the GirlsDoPorn producers. With these examples in hand, some are seeking to shut down the entire adult industry which relies largely on credit card transactions. Given the vast amount of sexually-explicit content found online, it is hardly surprising that some minute portion may be created and uploaded by bad actors. However, these instances are being used to support widespread censorship of adult content by demanding denial of access to basic credit card services. While probably not surprising in the era of “Cancel Culture,” this call for financial disruption of the adult industry should be taken seriously.
Such deplatforming efforts are dangerous to free speech principles, but can be notoriously effective in suppressing controversial or unpopular expression. However, they are usually targeted at specific individuals or organizations. This recent campaign sets its sights on the entire category of erotic speech. If successful it could do lasting damage to the entire adult industry. With sale of DVD’s in steep decline, adult performers, producers, photographers, website designers, affiliates, hosts, and website operators all largely depend on the ability of the end-user to purchase content online with a credit card. If the card associations respond to the public pressure by cutting off adult businesses, the results will be devastating.
Sex workers faced a similar dilemma when their access to online platforms was decimated as a result of FOSTA/SESTA. Escort advertising sites suddenly found that credit card processors, banks, and other service providers were unwilling to continue doing business with them. Sex workers suffered the most severe collateral damage, and were forced into dangerous and often exploitative circumstances to protect their livelihood. A widespread termination of adult sites by major credit card associations would cause similar results, but on a broader scale. Performers, cam models, clip artists, and website operators, themselves, would be forced to find a new line of work, or see their income dramatically reduced. Adult sites could try accepting payment in alternate currency like bitcoin, but only a small percentage of consumers are familiar with these payment methods. Financial service providers have always had a choke-hold on the adult industry due to their indispensable role. Their prohibited content policies have become a sort of industry best practices since failure to adopt them will result in termination of merchant processing accounts. If the card associations decide to block all adult content based on alleged, unsubstantiated ties to sex trafficking, the future is bleak.
One of the biggest objections asserted in the most recent effort is the lack of age or consent verification procedures required for users to upload sexually-oriented content on video sharing sites. Activists cite to the ability of a user to upload explicit content with only an email address. However, the same policies are in place for most user-generated content platforms – whether adult or mainstream. Moreover, requiring age or identity verification for the user would not address the larger issue of whether the person depicted in the videos consented to the filming or distribution. This is seemingly an intractable issue, since there is no reliable method for an online platform to verify performer consent – at least not one that could be effectively implemented. For example, large video sharing sites could not be expected to interview every person depicted in an adult film to satisfy themselves that the individuals were aware of the nuances of the rights they were releasing by publication and distribution of the content. Any such effort would hopelessly stifle the user upload process and impose an insurmountable burden on the site operator. Picture teams of lawyers reviewing release documents, signatures, ID’s, production dates, and facial expressions of performers to discern whether valid consent was given by willing adults.
Existing federal law requires producers of adult videos to review and maintain “Section 2257” age verification documents, but does not require specific documentation of consent to filming or distribution. Such issues are typically handled in the civil courts, if a production is not supported by sufficient contractual releases. Even the age verification law was declared unconstitutional by a federal court, as a content-based restriction on speech. There is no legal support for the proposition that online platforms must investigate every adult video to confirm that the performers have consented to both the production and distribution channels. Liability is rightly imposed on the up-loader or producer, if there is a problem with consent.
Despite the focus on the adult websites as facilitators of sex trafficking, the vast majority of underage content reports come from Facebook. Yet, activists are not calling for credits card companies to cease doing business with mainstream social media sites. The adult industry is often a convenient scapegoat to be blamed for larger social problems. In this instance, the focus is sex trafficking and revenge porn. Many of the proponents that paint themselves as “anti-trafficking” are comprised of anti-porn activists seeking to censor constitutionally protected adult entertainment. That is the goal. The First Amendment provides a necessary buffer against government censorship, however private companies make their own business decisions when it comes to online payment services. Thus far, the calls to terminate credit card services to adult sites remain isolated and hyperbolic. However, the adult industry remains susceptible to decisions made by public pressure and mob mentality, instead of logic and facts.
Lawrence G. Walters has represented adult entertainment clients for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached through his website, www.firstamendment.com, or on social media @walterslawgroup.